The Associated Press

Sat, May 10, 2008 (9:37 a.m.)

If there's one thing Congress and the Bush administration can agree on, it's that they've got a fight of historic proportions on their hands.

The House Judiciary Committee is demanding documents and testimony from President Bush's closest advisers about the firing of federal prosecutors.

When the White House refused, the Democrat-led committee went to court. Lawyers called the president's actions the most expansive view of presidential authority since Watergate.

Late Friday night, the Bush administration responded with court documents of its own, similarly steeped in history. Lawyers called the lawsuit unprecedented. Citing George Washington and Grover Cleveland, Richard Nixon and Bill Clinton, they said these types of clashes get resolved without going to court.

"For over two hundred years, when disputes have arisen between the political branches concerning the testimony of executive branch witnesses before Congress, or the production of executive branch documents to Congress, the branches have engaged in negotiation and compromise," Justice Department lawyers wrote.

The idea the Congress can't order the president or his advisers to do something is a principle known as executive privilege. That privilege isn't spelled out in the Constitution and courts are rarely asked to decide exactly what it means. And when they have been asked, judges have tried to avoid getting too specific.

"Never in American history has a federal court ordered an executive branch official to testify before Congress," lawyers for the White House wrote.

That makes for a murky area of law and the Bush administration is urging U.S. District Judge John D. Bates not to tidy it up. The ambiguity fosters compromise, political solutions and the kind of give and take that the Founding Father envisioned, attorneys said.

Clearing it up "would forever alter the accommodation process that has served the Nation so well for over two centuries," attorneys wrote.

Congress wants to know whether the Bush administration fired several U.S. attorney for political reasons. That controversy contributed to Attorney General Alberto Gonzales resigning last year.

The Judiciary Committee subpoenaed former White House counsel Harriet Miers to testify and demanded documents from President Bush's chief of staff, Josh Bolten.

The White House argues that the hiring and firing of presidential appointees is strictly the business of the executive branch. The administration has offered to let White House officials discuss the matter privately with Congress but objects to formal testimony under a subpoena.

Congress says it has tried negotiating and is left with no other options but a court case. The Bush administration countered in court documents Friday that, if Congress really wants to put up a fight about this, the Constitution offers plenty of ways for lawmakers to dig in their heels.

Congress can block presidential appointments until its demands are met, attorneys said. And since Congress controls the government's purse strings, it can cut off funding for the Executive branch agencies.

The stakes are high in a court fight.

Bush, who has prided himself on taking strong views on presidential authority, risks a legacy as the president who forever diminished that power in disputes with Congress. Congress risks having its subpoena authority _ one of its most powerful oversight tools _ permanently curtailed.